IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-372
Filed 04 April 2023
Caswell County, No. 20CVS254
THE ESTATE OF DESMOND JAPRAEL STEPHENS, LARRY F. STEPHENS,
ADMINISTRATOR, Plaintiff,
v.
ADP TOTALSOURCE DE IV, INC., MICRON PRECISION, LLC d/b/a KING
MACHINE OF NORTH CAROLINA and KORY J. KACHUR, Defendants.
Appeal by Defendants from order entered 20 December 2021 by Judge Stanley
L. Allen in Caswell County Superior Court. Heard in the Court of Appeals 19 October
2022.
Hendrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, G. Anderson
Stein, and Tyler A. Stull, for Defendants-Appellants.
Law Offices of James Scott Farrin, by Coleman Cowan and Preston W. Lesley,
and Law Offices of R. Lee Farmer, PLLC, by R. Lee Farmer, for Plaintiff-
Appellee.
COLLINS, Judge.
Desmond Japrael Stephens was crushed to death at his workplace when part
of a 2,000-pound metal tire mold that was elevated by a forklift that had been
modified without manufacturer approval fell onto his chest. Plaintiff filed willful
negligence claims against Stephens’ employer and his on-site supervisor (collectively
“Defendants”). Defendants moved to dismiss the claims under North Carolina Rules
STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for
failure to state a claim upon which relief can be granted, arguing that the North
Carolina Industrial Commission has exclusive jurisdiction over workplace injuries
and Plaintiff failed to allege facts sufficient to establish an exception to the
Commission’s exclusive jurisdiction. The trial court denied Defendants’ motions and
Defendants appealed. Because Plaintiff alleged facts sufficient to establish
exceptions to the Commission’s exclusive jurisdiction, we affirm.
I. Factual Background
The facts of this case, as Plaintiff alleged, are as follows: King Machine
operates a facility in Casswell County “where it manufactures tire molds and
repurposes tire molds for tire manufacturers[,]” which weigh “approximately two
thousand (2,000) pounds and [are] used in the tire manufacturing process to give tires
their final shape, taking on tread pattern and sidewall engraving.” Defendant Kory
J. Kachur “was the on-site Vice President of King Machine and was responsible and
familiar with the work that was being performed by the employees of Defendant King
Machine who were present at the facility . . . .” “At the time of the incident, [Stephens]
was employed by King Machine as a general laborer and had been an employee for
approximately three (3) weeks[,]” prior to which Stephens had “never worked in a
factory or manufacturing facility and never repaired and/or repurposed tire molds,”
nor had he “receive[d] training as to the proper method of repairing and repurposing
tire molds.”
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On 30 April 2019, although “Defendants knew [Stephens] was not trained,
qualified or experienced” to work with tire molds, Defendants “pulled [Stephens] from
another part of the Plant” and “instructed [Stephens] to detach bolts from below a
two-piece tire mold weighing approximately two thousand (2,000) pounds elevated by
a forklift.” Stephens was “not supervised” or “provided with adequate personal
protective/supportive equipment while undertaking the tasks assigned to him.”
“Shortly after [Stephens] was instructed to perform work under the tire mold a bolt
snapped causing one part of the two piece mold to collapse from the elevated position”
onto Stephens’ chest, killing him.
After Stephens’ death, the North Carolina Occupational Safety and Health
Division of the North Carolina Department of Labor (“NCOSH”) investigated the
Caswell County Plant and concluded that King Machine had violated several sections
of the Occupational Safety and Health Act (“OSHA”). Specifically, NCOSH concluded
that King Machine “committed a ‘Willful Serious’ violation of 29 CFR 1910.178(m)(2),
whereby employees stood under or passed under the elevated portion of a [forklift][,]
. . . while unbolting metal plates weight approximately 1,705 pounds.” NCOSH also
concluded that King Machine “committed a violation of 29 CFR 1910.178(a)(4) and 29
CFR 1910.178(a)(5), whereby Defendant King Machine modified their [forklifts]
without manufacturer approval with a single hook beam front-end forklift
attachment to transport and lift approximately 1,705 pound metal plates.”
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II. Procedural History
Plaintiff filed its initial complaint in superior court in October 2020, alleging
willful negligence against King Machine and Kachur and seeking compensatory and
punitive damages. Defendants answered in January 2021, denying Plaintiff’s
allegations, and asserting that the court lacked subject matter jurisdiction because
Plaintiff had failed to allege conduct that warranted an exception to the Industrial
Commission’s exclusive jurisdiction over workplace injuries. In July 2021, Plaintiff
filed a motion for leave to amend its complaint to add allegations clarifying its claims,
which was granted. Plaintiff filed its amended complaint in September 2021, which
included a negligence claim against King Machine in addition to the previous
allegations of willful negligence against each defendant. Defendants answered in
October 2021, denying Plaintiff’s allegations and reasserting that the court lacked
subject matter jurisdiction to hear the case. Defendants filed motions to dismiss
Plaintiff’s complaint under North Carolina Rules of Civil Procedure 12(b)(1) and
12(b)(6) in December 2021. After hearing the parties’ arguments, the trial court
denied Defendants’ motions. Defendants appealed.
The record on appeal was settled on 22 April 2022. Defendants filed their
principal brief on 8 July 2022. Plaintiff filed a supplement to the record on appeal on
4 August 2022 pursuant to North Carolina Rules of Appellate Procedure 9(b)(5),
asserting that the settled record on appeal was insufficient to respond to the issues
presented in Defendants’ brief. On 8 August 2022, Plaintiff filed its brief. Defendants
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Opinion of the Court
subsequently moved to strike Plaintiff’s 9(b)(5) supplement, arguing that the
documents in the supplement were not appropriate additions to the record on appeal
because they “were neither filed with the trial court, submitted to the trial court for
consideration at the hearing, admitted by the trial court, or made the subject of an
offer of proof[.]” Plaintiff also moved on 11 October 2022, pursuant to North Carolina
Rules of Appellate Procedure 9(b)(5)(b) and 37, to add the transcript from the
December 2021 hearing on Defendants’ motions to dismiss to the record on appeal;
Defendants opposed the motion.
III. Discussion
A. Motions on Appeal
1. Defendants’ Motion to Strike Plaintiff’s Rule 9(b)(5) Supplement to
the Record on Appeal
Plaintiff’s brief, filed four days after it filed the 9(b)(5) supplement, extensively
referenced documents in the supplement. Defendants moved to strike the
supplement, arguing that its contents were not appropriate additions to the record
on appeal. Defendants further requested that this Court strike all references to the
supplement in Plaintiff’s brief.
Rule 9(b)(5)(a) of the North Carolina Rules of Appellate Procedure states, “If
the record on appeal as settled is insufficient to respond to the issues presented in an
appellant’s brief . . . , the responding party may supplement the record on appeal with
any items that could otherwise have been included pursuant to this Rule 9.” N.C. R.
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App. P. 9(b)(5)(a). Rule 9(d) states, “Exhibits and other items that have been filed,
served, submitted for consideration, admitted, or made the subject of an offer of proof
may be included in the record on appeal . . . .” N.C. R. App. P. 9(d).
It is well-settled that this Court may “only consider the pleadings and filings
before the trial court . . . .” Twaddell v. Anderson, 136 N.C. App. 56, 68, 523 S.E.2d
710, 719 (1999). As Defendants argue, Plaintiff has failed to demonstrate that the
documents in the 9(b)(5) supplement had been filed, served, submitted for
consideration, admitted, or made the subject of an offer of proof. Accordingly,
Defendants’ motion to strike the 9(b)(5) supplement and all references to its contents
is allowed.
2. Plaintiff’s Motion to Add the Hearing Transcript
After all briefs in this matter had been filed, Plaintiff moved pursuant to Rule
9(b)(5)(b) to add the transcript of the hearing on Defendants’ motions to dismiss to
the record on appeal. Rule 9(b)(5)(b) states, “On motion of any party or on its own
initiative, the appellate court may order additional portions of a trial court record or
transcript sent up and added to the record on appeal.” N.C. R. App. P. 9(b)(5)(b).
In support of its motion, Plaintiff argues that inclusion of the transcript will
assist this Court’s understanding of the issues and that no prejudice would result
from the addition as both parties reference the hearing in their briefs. Defendants
oppose the motion, arguing that, because all briefs had already been filed, Defendants
would have no opportunity to respond to any issue raised by the introduction of the
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transcript. Defendants also argue that their proposed issues on appeal are the same
issues presented in their brief, and thus good cause does not exist to add the
transcript to the record after the record on appeal was settled.
After considering the parties’ arguments, in our discretion, we deny Plaintiff’s
motion to add the hearing transcript to the record on appeal.
B. Appellate Jurisdiction
The trial court’s order denying Defendants’ motions to dismiss is not a final
order and is therefore interlocutory. Veazey v. City of Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950) (“An interlocutory order is one made during the pendency of
an action, which does not dispose of the case, but leaves it for further action by the
trial court in order to settle and determine the entire controversy.”) A party generally
has “no right of immediate appeal from interlocutory orders and judgments.”
Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).
However, an interlocutory order may be immediately appealable if the judgment
affects a substantial right. N.C. Gen. Stat. § 7A-27(b)(3)(a) (2021). Our Supreme
Court has determined that the denial of a motion to dismiss under Rule 12(b)(1) and
the exclusivity provision of the North Carolina Workers’ Compensation Act (“the Act”)
affects a substantial right and is immediately appealable. See Burton v. Phoenix
Fabricators & Erectors, Inc., 362 N.C. 352, 661 S.E.2d 242 (2008). Similarly, this
Court has recognized that denial of a motion to dismiss under Rule 12(b)(6) is
immediately appealable as affecting a substantial right to the extent that the motion
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relates to the exclusivity provision of the Act. Est. of Vaughn v. Pike Elec., LLC, 230
N.C. App. 485, 491-92, 751 S.E.2d 227, 231-32 (2013).
Defendants’ motions to dismiss under Rules 12(b)(1) and 12(b)(6) are based on
the exclusivity provision of the Act and its effect on the trial court’s jurisdiction over
the matter. Thus, the trial court’s order denying Defendants’ motions affects a
substantial right and is immediately appealable. See N.C. Gen. Stat. § 7A-27(b)(3)(a).
Accordingly, this Court has jurisdiction to review the trial court’s order.
C. Standard of Review
Defendants make interrelated arguments that the trial court erred by failing
to dismiss Plaintiff’s claims under North Carolina Rules of Civil Procedure 12(b)(1),
for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon
which relief can be granted.
We review an order denying a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure
de novo. Hatcher v. Harrah’s N.C. Casino Co., 169 N.C. App. 151, 155, 610 S.E.2d
210, 212 (2005) (citation omitted). Under de novo review, “the court considers the
matter anew and freely substitutes its own judgment for that of the [trial court].” In
re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citation
omitted).
We likewise review a trial court’s order denying a Rule 12(b)(6) motion to
dismiss de novo. Est. of Long v. Fowler, 378 N.C. 138, 148, 861 S.E.2d 686, 694 (2021).
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In ruling on a Rule 12(b)(6) motion to dismiss, “the allegations of the complaint must
be viewed as admitted, and on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be granted.” Stanback v.
Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citation omitted). “[T]he
well-pleaded material allegations of the complaint are taken as admitted; but
conclusions of law or unwarranted deductions of fact are not admitted.” Sutton v.
Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970) (quotation marks and citation
omitted). Dismissal under Rule 12(b)(6) is proper only in the following circumstances:
“(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the
complaint on its face reveals the absence of facts sufficient to make a good claim; or
(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”
Wood v. Guilford Cnty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation
omitted).
Because a trial court’s jurisdiction over workers’ compensation matters
depends on whether an exception to the Act’s exclusivity provision applies, the
threshold question is whether Plaintiff has stated a claim which fits within those
exceptions. See Blow v. DSM Pharm., Inc., 197 N.C. App. 586, 589, 678 S.E.2d 245,
249 (2009). Thus, we review whether Plaintiff’s complaint stated a claim for which
relief can be granted under Rule 12(b)(6).
D. Analysis
Defendants argue that the North Carolina Industrial Commission has
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exclusive jurisdiction over Plaintiff’s claims under the Act because Plaintiff failed to
state a claim that falls within exceptions to the Act’s exclusivity provision.
The Act states:
Every employer subject to the compensation provisions of
this Article shall secure the payment of compensation to
his employees in the manner hereinafter provided; and
while such security remains in force, he or those conducting
his business shall only be liable to any employee for
personal injury or death by accident to the extent and in
the manner herein specified.
N.C. Gen. Stat. § 97-9 (2021). The Act also provides:
If the employee and the employer are subject to and have
complied with the provisions of this Article, then the rights
and remedies herein granted to the employee, his
dependents, next of kin, or personal representative shall
exclude all other rights and remedies of the employee, his
dependents, next of kin, or representative as against the
employer at common law or otherwise on account of such
injury or death.
Id. § 97-10.1 (2021).
In effect, the Act provides an avenue for injured employees to receive “sure and
certain recovery for their work-related injuries without having to prove negligence on
the part of the employer or defend against charges of contributory negligence.”
Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556, 597 S.E.2d 665, 667 (2003).
“In return, the Act limits the amount of recovery available for work-related injuries
and removes the employee’s right to pursue potentially larger damages awards in
civil actions.” Woodson v. Rowland, 329 N.C. 330, 338, 407 S.E.2d 222, 227 (1991)
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(citation omitted).
The exclusivity provision generally precludes common law negligence actions
against employers and co-employees whose negligence caused the injury. Pleasant v.
Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985). However, our Supreme Court
recognizes two exceptions to the exclusivity provision. First, an employee may pursue
a civil action against an employer when the employer “intentionally engages in
misconduct knowing it is substantially certain to cause injury or death to employees
and an employee is injured or killed by that conduct[.]” Woodson, 329 N.C. at 340-
41, 407 S.E.2d at 228. Second, an employee may pursue a civil action against a
co-employee for their willful, wanton, and reckless negligence. Pleasant, 312 N.C. at
717, 325 S.E.2d at 250.
1. Willful Negligence of King Machine (Woodson Claim)
Defendants argue that Plaintiff failed to allege facts sufficient to establish an
exception to the Commission’s exclusive jurisdiction under Woodson. To state a
Woodson claim, a plaintiff “must allege that the employer intentionally engaged in
misconduct knowing that such conduct was substantially certain to cause injury or
death . . . .” Vaughn, 230 N.C. App. at 494, 751 S.E.2d at 233-34 (citing Woodson, 329
N.C. at 340-41, 407 S.E.2d at 228). “‘Substantial certainty’ under Woodson is more
than the ‘mere possibility’ or ‘substantial probability’ of a serious injury or death. No
one factor is determinative in evaluating whether a plaintiff has stated a valid
Woodson claim; rather, all of the facts taken together must be considered.” Arroyo v.
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Scottie’s Prof. Window Cleaning, Inc., 120 N.C. App. 154, 159, 461 S.E.2d 13, 16 (1995)
(citations omitted).
In Woodson, decedent worked for defendant-employer, a subcontractor who
was hired to help dig two trenches to lay sewer lines. Woodson, 329 N.C. at 334-35,
407 S.E.2d at 225. In the interest of time, the general contractor provided a second
crew to dig the second trench. Id. at 335, 407 S.E.2d at 225. The foreman for the
second crew refused to work on the second trench without a trench box, as safety
regulations required. Id. Defendant-employer procured a trench box for the second
crew but did not do so for his own crew. Id. While decedent was working in the first
trench without the protection of a trench box, the trench collapsed, and decedent was
killed. Id. at 336, 407 S.E.2d at 225-26.
The administrator of decedent’s estate filed a wrongful death action in superior
court against defendant-employer and forecast evidence that the soil conditions were
such that the trench was substantially certain to fail, that defendant-employer knew
of the dangers associated with trenching and had disregarded safety regulations, and
that defendant-employer had been at the site and had observed the trench firsthand.
Id. at 345-46, 407 S.E.2d at 231-32. The trial court granted summary judgment in
favor of defendant-employer. Id. at 333, 407 S.E.2d at 224. Our Supreme Court
reversed, stating that plaintiff’s forecast of evidence was sufficient to show that there
was a genuine issue of material fact as to whether defendant-employer’s conduct
satisfied the substantial certainty standard. Id. at 345, 407 S.E.2d at 231.
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Our Supreme Court revisited the Woodson exception, again in a summary
judgment posture, in Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d
665 (2003). There, decedent worked for the town of Scotland Neck as a general
maintenance worker who assisted in the operation of a garbage truck. Id. at 553, 597
S.E.2d at 666. Part of decedent’s job involved attaching a dumpster to a latching
mechanism on the garbage truck, which allowed the truck to lift the dumpster and
empty the dumpster’s contents into the truck. Id. One day, while the dumpster was
being lifted, the latching mechanism failed, causing the dumpster to swing towards
decedent and pin him against the truck. Id. at 553-54, 597 S.E.2d at 666. Although
decedent’s co-workers freed him, he later died from his injuries. Id. at 554, 597 S.E.2d
at 666.
An investigation revealed that the truck’s latching mechanism was broken and
the dumpster was bent, and that these defects were the direct cause of the accident.
Id. Although several of decedent’s co-workers indicated that the latching mechanism
had been broken for at least two months prior to the accident, decedent’s supervisor
denied any knowledge of such defects. Id. Additionally, an NCOSH investigation
found five state labor law violations, including “failure to train employees in the safe
operation of garbage truck equipment, failure to properly supervise employees in the
operation of garbage truck equipment, failure to implement a program for inspection
of garbage truck equipment, operation of defective garbage truck equipment, and
unsafe operation of garbage truck equipment.” Id.
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Plaintiffs, the co-administrators of decedent’s estate, filed a complaint in
superior court against the town and its officials alleging “willful, wanton, reckless,
careless and gross negligence.” Id. at 554, 597 S.E.2d at 666-67. Defendants moved
to dismiss plaintiffs’ claim under Rule 12(b)(6) and were denied. Whitaker v. Town
of Scotland Neck, 154 N.C. App. 660, 662, 572 S.E.2d 812, 813 (2002). However, the
trial court later granted defendants summary judgment. Id. This Court reversed,
relying on a six-factor test established in Wiggins v. Pelikan, Inc., 132 N.C. App. 752,
513 S.E.2d 829 (1999). Id. at 663-65, 572 S.E.2d at 814-15. Our Supreme Court
reversed this Court and reinstated the trial court’s order granting summary
judgment. Whitaker, 357 N.C. at 558, 597 S.E.2d at 669. In doing so, the Supreme
Court “explicitly reject[ed] the Wiggins test and rel[ied] solely on the standard
originally set out . . . in Woodson v. Rowland.” Id. at 556, 597 S.E.2d at 667. The
Supreme Court emphasized that “[t]he Woodson exception represents a narrow
holding in a fact-specific case, and its guidelines stand by themselves.” Id at 557, 597
S.E.2d at 668.
The Supreme Court distinguished the facts before it from those in Woodson,
specifically noting that:
On the day of the accident, none of the Town’s supervisors
were on-site to monitor or oversee the workers’ activities.
Decedent was not expressly instructed to proceed into an
obviously hazardous situation as in Woodson. There is no
evidence that defendants knew that the latching
mechanism on the truck was substantially certain to fail or
that if such failure did occur, serious injury or death would
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be substantially certain to follow.
Id. at 558, 597 S.E.2d at 668. The Supreme Court pointed out that “in Woodson, the
employee worked in a deep, narrow trench in which it was impossible for him to
escape . . . [,]” and that “decedent was not so helpless.” Id. at 558, 597 S.E.2d at 669.
The Supreme Court concluded that “[t]he facts of this case involve defective
equipment and human error that amount to an accident rather than intentional
misconduct.” Id.
This Court examined the Woodson exception in the context of a motion to
dismiss under Rule 12(b)(6) in Arroyo and Vaughn. In Arroyo, plaintiff had been
working as a window washer for less than a year when he was instructed to wash
windows on a tall building by climbing down a ladder from the roof without safety
equipment. 120 N.C. App. at 157, 461 S.E.2d at 15. To reach some of the windows,
plaintiff was required to stand on a narrow ledge and lean outward. Id. Plaintiff and
a coworker attempted to balance each other by locking arms, but plaintiff’s supervisor
instructed them to stop because they were working too slowly. Id. Shortly after
plaintiff ceased locking arms with his coworker for balance, he fell and suffered
permanent injury. Id. at 158, 461 S.E.2d at 15-16.
Plaintiff filed a complaint in superior court alleging that he had never been
given any safety training in the cleaning of high-rise exterior windows; that his
employer did not publish safety rules or enforce State and Federal safety measures;
that his employer was aware that permitting or requiring him to work from a great
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height without safety equipment was dangerous and substantially certain to cause
serious injury or death; and that his employer intentionally forewent safety
precautions because they were considered too cumbersome. Id. at 155-157, 461
S.E.2d at 14-15. The trial court dismissed plaintiff’s complaint for failure to state a
claim. Id. at 155, 461 S.E.2d at 14. This Court reversed, holding that plaintiff’s
allegations were “sufficient to state a legally cognizable claim under Woodson that
defendant intentionally engaged in conduct that it knew was substantially certain to
cause serious injury or death.” Id. at 159-60, 461 S.E.2d at 17.
In Vaughn, decedent worked as a groundman who assisted other employees
working on overhead power distribution lines. 230 N.C. App. at 486, 751 S.E.2d at
229. Decedent’s supervisor directed decedent to climb a utility pole and retrofit a live
transformer, in part by “removing the hotline clamp from the primary line which [left]
the primary line exposed.” Id. at 487-88, 751 S.E.2d at 230. This task was ordinarily
“reserved for [a] trained and experienced lineman[,]” as opposed to decedent, who was
a groundman. Id. at 488, 751 S.E.2d at 230. While decedent was attempting this
procedure, he was electrocuted. Id.
Plaintiff filed a complaint in superior court alleging that decedent had not
received any training to perform the work required of a lineman, that decedent had
not been provided with proper safety equipment, that decedent’s employer was aware
that requiring an untrained groundman to perform the work of a trained lineman
was certain to result in death or serious injury, and that decedent’s employer knew
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that groundmen were instructed to perform the inherently dangerous activities
reserved for trained linemen. Id. at 487-89, 751 S.E.2d at 229-30. The trial court
denied the employer’s motion to dismiss. Id. at 490, 751 S.E.2d at 231. This Court
reversed, noting that plaintiff made no factual allegations to support his contention
that the employer knew groundmen were instructed to perform the inherently
dangerous activities reserved for trained linemen. Id. at 498-99, 751 S.E.2d at 236.
Furthermore, plaintiff’s allegations established that the practice was in clear
violation of the employer’s published work methods and safety manuals, suggesting
that the employer “did not intend for any of its groundmen, including [d]ecedent, to
climb utility poles and de-energize transformers.” Id. at 499, 751 S.E.2d at 236.
In Arroyo, plaintiff alleged facts that, taken as true, were sufficient to establish
that the employer intentionally placed plaintiff in the dangerous situation knowing
the danger involved. See Arroyo, 120 N.C. App. at 159-60, 461 S.E.2d at 16-17. On
the other hand, in Vaughn, plaintiff was unable to articulate specific facts indicating
that the employer knew of and disregarded safety procedures, and his conclusory
allegations were discordant with the employer’s published safety policies. See
Vaughn, 230 N.C. App. at 498-99, 751 S.E.2d at 236-37.
Here Plaintiff alleged the following:
17. Upon information and belief, [Stephens] had no
experience and received no training in the repair and/or
replacement of tire molds and the proper method of
disconnecting the two-piece tire molds in use at Defendant
King Machine.
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18. At the time of the incident, Defendants knew working
under heavy loads without proper support or using proper
equipment was certain to result in death or serious injury.
....
20. Upon information and belief, Defendant King Machine
. . . instructed [Stephens] to detach bolts from below a two-
piece tire mold weighing approximately two thousand
(2,000) pounds elevated by a forklift.
21. Defendants knew [Stephens] was not trained, qualified
or experienced to undertake such a dangerous activity.
....
25. Upon information and belief, [Stephens] was not
provided with adequate personal protective/supportive
equipment while undertaking the tasks assigned to him.
....
35. Following [Stephens’] death, an investigation was
performed by [NCOSH].
36. [NCOSH] reached the following conclusions as a result
of their investigation:
a. Defendant King Machine committed a “Willful
Serious” violation of 29 CFR 1910.178(m)(2),
whereby employees stood under or passed under the
elevated portion of a [forklift] . . . while unbolting
metal plates weight approximately 1,705 pounds.
....
c. Defendant King Machine committed a violation of 29
CFR 1910.178(a)(4) and 29 CFR 1910.178(a)(5),
whereby Defendant King Machine modified their
[forklifts] without manufacturer approval with a
single hook beam front-end forklift attachment to
transport and lift approximately 1,705 pound metal
plates.
37. Under information and belief, Defendants knew or
should have known the proper safety measures in the
industry and Defendant knew or should have known of the
proper method of elevating heavy equipment, like tire
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molds, so that the two piece molds can be disassembled.
....
52. As alleged herein, Defendant King Machine . . .
intentionally engaged in conduct knowing it was
substantially certain to cause serious injury or death to
[Stephens]. Among other things, this conduct included the
following:
a. Instructing [Stephens], a new general laborer, to
perform work below an approximately 2,000 pound
tire mold, work that he had not been trained to
perform and was inherently dangerous to perform;
b. Instructing [Stephens] to work below the tire mold
without proper experience, training, or safety
equipment;
c. Fostering a work environment in which speed is
prioritized such as [Stephens] was forced to perform
dangerous and deadly work for which he had not
been trained and for which he was unqualified to
perform.
d. Instructing [Stephens] to perform work from below
a forklift without the proper supports necessary to
prevent a crushing type incident;
e. The violation of applicable statutes, rules and
regulations, including with limitation 29 CFR
1910.178(a)(4), 29 CFR 1910.178(a)(5), 29 CFR
1910.178(l)(3)(i)(M), and 29 CFR 1910.178(m)(2);
and
f. Such other intentional and/or aggravated conduct as
may be revealed during discovery.
Plaintiff’s allegations are more like those in Arroyo than those in Vaughn.
Specifically, Plaintiff alleged that King Machine “knew working under heavy loads
without proper support or using proper equipment was certain to result in death or
serious injury[,]” that NCOSH concluded King Machine had committed a “‘Willful
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Opinion of the Court
Serious’ violation of [OSHA], whereby employees stood under or passed under the
elevated portion of a [forklift] . . . while unbolting metal plates weight approximately
1,705 pounds[,]” and that NCOSH concluded King Machine had “modified their
[forklifts] without manufacturer approval” to facilitate this process. As in Arroyo,
Plaintiff alleged facts that, taken as true, establish that King Machine was both
aware of and encouraged the misconduct that resulted in Stephens’ death.
Additionally, Plaintiff alleged facts that, taken as true, establish that King
Machine’s conduct “was substantially certain to cause injury or death . . . .” Vaughn,
230 N.C. App. at 494, 751 S.E.2d at 233-34 (citing Woodson, 329 N.C. at 340-41, 407
S.E.2d at 228). In Woodson, our Supreme Court held that directing employees to dig
a trench without a trench box was substantially certain to result in the trench caving
in. In Arroyo, this Court held that directing employees to clean high-rise windows
with no fall protection was substantially certain to result in an employee falling from
the building. Here, directing employees to stand beneath and disassemble 2,000-
pound metal tire molds—suspended by forklifts that had been modified without
manufacturer approval—without the proper supports necessary to prevent a
crushing-type incident is substantially certain to result in the tire mold falling on and
crushing the employee.
Defendants argue that Plaintiff’s allegations are insufficient to state a
Woodson claim because “Plaintiff does not allege a history of safety violations or the
removal of safety equipment[,]” and because “Plaintiff does not allege [King Machine]
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
knew the bolt would snap.” (Capitalization altered).1 Although the Woodson
exception is narrow and fact-bound, these exact allegations are not required to state
a Woodson claim. Woodson itself did not state the cause of the trench cave-in, only
that the cave-in was substantially certain. Nor did Arroyo state how plaintiff fell,
only that a fall was substantially certain. Here, Plaintiff made no argument that the
mold was secure but for a bolt that snapped. Instead, Plaintiff explicitly alleged that
the mold was improperly suspended, and that if a safe method for working beneath
the mold exists, Stephens was not so informed.
The dissent asserts that Whitaker is a more appropriate case by which to
measure the present facts. The dissent’s reliance on Whitaker is misplaced as
Whitaker is procedurally and factually distinguishable. Unlike the present case,
Whitaker and Woodson were decided on motions for summary judgment rather than
on motions to dismiss like Arroyo and Vaughn. In fact, in Whitaker, as here, the trial
court denied defendant’s motion to dismiss plaintiffs’ claim under Rule 12(b)(6).
Whitaker, 154 N.C. App. at 662, 572 S.E.2d at 813.
“The distinction between a Rule 12(b)(6) motion to dismiss and a motion for
summary judgment is more than a mere technicality.” Locus v. Fayetteville St. Univ.,
102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991). At summary judgment, the
1The dissent, too, improperly focuses on the precipitating event. Plaintiff’s allegation, and our
decision, is that requiring employees to work beneath 2,000-pound metal plates without proper
supports is substantially certain to result in serious injury or death to anyone standing below, no
matter what they are doing.
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
parties, and the court, have the benefit of discovery. See N.C. Gen. Stat. §1A-1, Rule
56 (“The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact . . . .”). On a motion to
dismiss, the question is solely whether the allegations are legally sufficient. Wood v.
Guilford Cnty., 355 N.C. at 166, 558 S.E.2d at 494 (citation omitted).
In Woodson, our Supreme Court had the benefit of expert testimony indicating
that the soil conditions were ripe for a cave-in. In Whitaker, the trial court denied
defendant’s motion to dismiss but granted summary judgment after plaintiff had the
opportunity to present evidence that the town knew its garbage truck was defective
and failed to do so. Here, Plaintiff has had no such opportunity, and it would be
inappropriate to compare his allegations to a case that emerged from a significantly
more developed evidentiary record.2 Accordingly, this case is more appropriately
compared to Arroyo and Vaughn, which arose from the same procedural posture.
In addition to the distinct procedural posture, the facts alleged in Plaintiff’s
amended complaint are not, as the dissent asserts, “much closer to those in Whitaker
than those in Woodson.” In Whitaker, the Court emphasized that “[o]n the day of the
accident, none of the Town’s supervisors were on-site to monitor or oversee the
workers activities[,]” and that “[d]ecedent was not expressly instructed to proceed
2 Plaintiff acknowledged this limitation in both his complaint and his brief.
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Opinion of the Court
into an obviously hazardous situation . . . .” Whitaker, 357 N.C. at 558, 597 S.E.2d at
668. Here, Plaintiff alleged that Kachur “was the on-site Vice President of King
Machine and was responsible and familiar with the work that was being performed[,]”
and that Kachur “did, in fact, instruct [Stephens] to work below the approximately
2,000 pound tire mold . . . .” Furthermore, in Whitaker, the Court could not conclude
that the town engaged in intentional misconduct because plaintiff failed to present
evidence that the town knew its garbage truck was faulty. Id. Here, Plaintiff alleged
that King Machine “modified their [forklifts] without manufacturer approval . . . to
transport and lift approximately 1,705 pound metal plates” and “actively create[ed],
through its use of [a forklift] vs crane, a dangerous condition such that workers, like
[Stephens], were unable to perform their duties safely and subject themselves to
bodily harm and death[.]”
The dissent further mischaracterizes our decision by invoking an
explicitly-rejected six-factor test and using it as a lens through which to view our
analysis. As our Supreme Court stated when it disavowed that test, “[Woodson’s]
guidelines stand by themselves.” Id. at 557, 597 S.E.2d at 668. Our decision was
reached, as Whitaker instructs, by applying the substantial certainty standard as it
existed in Woodson and without reference to the Wiggins factors.
Because Plaintiff alleged facts that, taken as true, establish that King Machine
intentionally engaged in misconduct knowing that such conduct was substantially
certain to, and in fact did, cause Stephens’ death, Plaintiff’s allegations are sufficient
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
to state a legally cognizable claim under Woodson. See Arroyo, 120 N.C. App. at
159-60, 461 S.E.2d at 17.
2. Willful Negligence of Kory J. Kachur (Pleasant Claim)
Defendants argue that Plaintiff failed to allege facts sufficient to establish an
exception to the Commission’s exclusive jurisdiction under Pleasant. To state a
Pleasant claim, a plaintiff must allege that a co-employee acted with willful, wanton,
and reckless negligence; and that the co-employee’s negligence resulted in plaintiff’s
injury. Pleasant, 312 N.C. at 717-18, 325 S.E.2d at 250. Willful negligence is “the
intentional failure to carry out some duty imposed by law or contract which is
necessary to the safety of the person or property to which it is owed.” Id. at 714, 325
S.E.2d at 248 (citations omitted). Wanton conduct is “an act manifesting a reckless
disregard for the rights and safety of others.” Id. (citations omitted). “This does not
require an actual intent to injure, but can be shown constructively when the
co-employee’s conduct threatens the safety of others and is so reckless or manifestly
indifferent to the consequences that a finding of willfulness and wantonness
equivalent in spirit to actual intent is justified.” Vaughn, 230 N.C. App. at 500, 751
S.E.2d at 237 (quotation marks and citation omitted).
In Pleasant, plaintiff’s co-employee on a construction site attempted to drive a
truck as close to plaintiff as possible without striking him, but miscalculated and
struck plaintiff, seriously injuring him. Pleasant, 312 N.C. at 711, 325 S.E.2d at 246.
Our Supreme Court held that this behavior constituted willful, wanton, and reckless
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
negligence and allowed the case to proceed in superior court. Id. at 718, 325 S.E.2d
at 250.
Our Supreme Court revisited the Pleasant exception in Pendergrass v. Card
Care Inc., 333 N.C. 233, 424 S.E.2d 391 (1993), where it held that two co-employees’
alleged negligence did not rise to the level of the negligence in Pleasant. There,
plaintiff was seriously injured when his arm was caught in a final inspection machine
that he was operating. Id. at 236, 424 S.E.2d at 393. Plaintiff filed a complaint in
superior court alleging that two co-employees were grossly and wantonly negligent
“in directing [plaintiff] to work at the final inspection machine when they knew that
certain dangerous parts of the machine were unguarded, in violation of OSHA
regulations and industry standards.” Id. at 238, 424 S.E.2d at 394. Our Supreme
Court held that the co-employees’ conduct, as plaintiff alleged, did not fall within the
Pleasant exception, reasoning that:
Although they may have known certain dangerous parts of
the machine were unguarded when they instructed
[plaintiff] to work at the machine, we do not believe this
supports an inference that they intended that [plaintiff] be
injured or that they were manifestly indifferent to the
consequences of his doing so.
Id.
More recently, in Vaughn, this Court held that plaintiff had alleged facts
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
sufficient to state a Pleasant claim against his supervisor.3 In Vaughn, decedent
worked as a groundman who assisted other employees working on overhead power
distribution lines. 230 N.C. App. at 486, 751 S.E.2d at 229. Decedent’s supervisor
directed decedent to climb a utility pole and retrofit a live transformer, in part by
“removing the hotline clamp from the primary line which [left] the primary line
exposed.” Id. at 487-88, 751 S.E.2d at 230. This task was ordinarily “reserved for [a]
trained and experienced lineman[,]” as opposed to decedent, who was a groundman.
Id. at 488, 751 S.E.2d at 230. While decedent was attempting this procedure, he was
electrocuted. Id.
This Court held the supervisor’s behavior was “not less egregious than that of
the co-employee in Pleasant . . . .” Id. at 502, 751 S.E.2d at 238. Noting that decedent
was “an untrained groundman who had previously worked as a truck driver,” this
Court held that the supervisor’s alleged direction to decedent to climb the power pole
and work on live power lines without the necessary training, equipment, or
experience was “sufficient to create an inference that [the supervisor] was manifestly
indifferent to the consequences of his actions . . . .” Id. at 503, 751 S.E.2d at 239.
Here, Plaintiff alleged the following:
17. Upon information and belief, [Stephens] had no
experience and received no training in the repair and/or
replacement of tire molds and the proper method of
3Although this Court held that plaintiff’s allegations were insufficient to state a claim against
the employer under Woodson, this Court held that plaintiff had alleged facts sufficient to state a claim
against the supervisor under Pleasant. Vaughn, 230 N.C. App. at 503, 751 S.E.2d at 239.
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
disconnecting the two-piece tire molds in use at Defendant
King Machine.
18. At the time of the incident, Defendants knew working
under heavy loads without proper support or using proper
equipment was certain to result in death or serious injury.
....
20. Upon information and belief, Defendant King Machine,
under guidance or lack thereof from Defendant Kachur,
instructed [Stephens] to detach bolts from below a two-
piece tire mold weighing approximately two thousand
(2,000) pounds elevated by a forklift.
21. Defendants knew [Stephens] was not trained, qualified
or experienced to undertake such a dangerous activity.
22. Despite [Stephens’] training or lack thereof, the task
that [Stephens] was instructed to perform was inherently
dangerous for a skilled laborer, let alone a newly hired
employee with no training.
23. Upon information and belief, [Stephens] was not
supervised while undertaking the dangerous activity of
disassembling tire molds.
24. Upon information and belief, [Stephens] was pulled
from another part of the Plant in the moments leading up
to the incident described herein due to staffing shortages.
25. Upon information and belief, [Stephens] was not
provided with adequate personal protective/supportive
equipment while undertaking the tasks assigned to him.
....
45. At the time of the incident alleged in this Complaint,
Defendant Kachur knew, or was substantially certain, that
instructing [Stephens], who had no training or experience
to work under an approximately 2,000 pound tire mold
without any supports or safety measures posed a serious
risk of injury or death.
46. Despite knowledge that instructing [Stephens] to
perform this work posed a serious risk of injury or death to
[Stephens], Defendant Kachur did, in fact, instruct
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
[Stephens] to work below the approximately 2,000 pound
tire mold by failing to provide the appropriate equipment
that is standard in the industry.
47. In directing, instructing and requiring that [Stephens]
work below heavy tire molds, a task that Defendant
Kachur knew [Stephens] was not trained for or experienced
in, the conduct of Defendant Kachur demonstrated willful
negligence, wanton negligence, reckless negligence, a
reckless disregard for the rights and safety of others, and a
manifest indifference to others, including [Stephens].
Plaintiff’s allegations are similar to the allegations in Vaughn. Here, like in
Vaughn, Plaintiff alleged that Kachur knowingly directed Stephens—an untrained
employee who had been working elsewhere in the plant—to detach bolts from beneath
a 2,000-pound metal tire mold—which was suspended by a forklift that had been
modified without manufacturer approval—without any training, supervision, or
safety equipment. Like in Vaughn, this conduct is sufficient to create an inference
that Kachur was manifestly indifferent to the consequences of his actions. See
Vaughn, 230 N.C. App. at 503, 751 S.E.2d at 239. Thus, like the supervisor’s conduct
alleged in Vaughn, Kachur’s conduct as Plaintiff alleged is sufficient to state a legally
cognizable claim under Pleasant.
The dissent asserts without further support, “I do not believe that the factual
allegations in the complaint are sufficient to establish a Pleasant claim against Mr.
Stephens’ supervisor.” Again, focusing on a contrived theory that a bolt on the tire
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
mold was defective,4 the dissent claims Kachur’s actions “fall short to show that he
had actual or constructive intent to injure Mr. Stephens . . . .” However, Plaintiff
expressly alleged that Kachur knew the danger of working beneath a 2,000-pound
metal tire mold, knew that Stephens had no training or experience in working
beneath a 2,000-pound metal tire mold, and directed Stephens to perform the work
anyway, without protective equipment, instruction, or supervision. Such an action
cannot be characterized as anything less than a manifest indifference to the
consequences of his actions.
3. Ordinary Negligence of King Machine (Stranger to Employment
Claim)
Plaintiff argues, in the alternative, that King Machine was not Stephens’
employer when the incident occurred, and therefore Plaintiff’s negligence action
against King Machine does not fall within the Commission’s jurisdiction. Specifically,
Plaintiff argues that “[Stephens] was an employee of TotalSource at all times and
never an employee of [King Machine].”
Our Supreme Court has interpreted the Act’s exclusivity provision as “allowing
an injured worker to bring a common law negligence action against a third party . . .
when the third party is a ‘stranger to the employment.’” Wood v. Guilford Cnty., 355
N.C. 161, 164, 558 S.E.2d 490, 493-94 (2002) (citations omitted). However, Plaintiff’s
argument depends entirely on an alleged employment agreement that is not in the
4 Plaintiff made no allegation that any part of the mold was defective.
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STEPHENS V. ADP TOTALSOURCE DE IV, INC.
Opinion of the Court
record on appeal. Furthermore, the record on appeal shows that Plaintiff alleged,5
and Defendants admitted,6 that King Machine was Stephens’ employer at the time of
the incident. Accordingly, we decline to address Plaintiff’s argument that the Act
does not apply.
IV. Conclusion
Because Plaintiff alleged facts sufficient to establish exceptions to the
Commission’s exclusive jurisdiction over this case under Woodson and Pleasant, the
trial court did not err by denying Defendants’ motions to dismiss pursuant to Rule
12(b)(6). Because Plaintiff sufficiently pled Woodson and Pleasant claims, the trial
court did not err by denying Defendants’ motions to dismiss pursuant to Rule 12(b)(1).
The trial court’s order denying Defendants’ motions to dismiss is affirmed.
AFFIRMED.
Judge WOOD concurs.
Judge DILLON concurs in part and dissents in part by separate opinion.
5 Paragraph 13 of Plaintiff’s complaint states, “At the time of the incident, [Stephens] was
employed by King Machine as a general laborer and had been an employee for approximately three (3)
weeks.”
6 Paragraph 13 of Defendants’ answer states, “The allegations of Paragraph 13 are admitted,
upon information and belief.”
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No. COA22-372 – Stephens v. ADP Totalsource
DILLON, Judge, concurring in part and dissenting in part.
Desmond Stephens was tragically crushed to death in a workplace accident by
half of a heavy two-piece tire mold which fell on him when a bolt providing support
for the mold failed. His estate filed this action against his employers and supervisor
for his death. Because I conclude the complaint fails to allege a claim establishing
any exception to the Industrial Commission’s exclusive jurisdiction, my vote is to
reverse the trial court’s order denying Defendants’ motion to dismiss. Therefore, I
respectfully dissent.7
Woodson Claim Against Employers
Generally, our Workers’ Compensation Act provides the sole remedies against
an employer for a workplace accident. However, in its 1991 landmark Woodson
decision, our Supreme Court carved out a narrow exception to the Act’s exclusivity,
that a tort action apart from the Act may be maintained where an employee’s injury
or death is caused by intentional conduct of the employer and the employer knew it
was substantially certain that such conduct would cause the injury or death:
We hold that when an employer intentionally engages in
misconduct knowing it is substantially certain to cause
serious injury or death to employees and an employee is
injured or killed by the misconduct, that employee, or the
personal representative of the estate in case of death, may
pursue a civil action against the employer. Such misconduct
7 I concur in Section III.A. of the majority opinion disposing of the parties’ motions on appeal.
STEPHENS V. ADP TOTALSOURCE
DILLON, J., dissenting
is tantamount to an intentional tort, and civil actions based
thereon are not barred by the exclusivity provisions of the
Act.
Woodson v. Rowland, 329 N.C. 330, 341-42, 407 S.E.2d 222, 228 (1991).
The majority relies primarily on our Court’s 1995 Arroyo opinion handed down
four years after Woodson, to conclude that Mr. Stephens’ estate has properly alleged
a Woodson claim. Arroyo v. Scottie’s, 120 N.C. App. 154, 461 S.E.2d 13 (1995). I
conclude that this reliance on Arroyo is misplaced and that our Supreme Court’s more
recent guidance in Whitaker v. Scotland Neck, 357 N.C. 552, 597 S.E.2d 665 (2003)
compels reversal of the trial court’s order, as explained below.
In Arroyo, our Court relied on several factors to conclude that an employee had
proved a Woodson claim. In 1999, four years after Arroyo, our Court identified and
weighed six factors to conclude that an employee had proved a Woodson claim.
Wiggins v. Pelikan, 132 N.C. App. 752, 513 S.E.2d 829 (1999). In Wiggins, we
expressly relied on Arroyo for two of the factors; namely, whether the employer knew
of, but failed to take, additional safety precautions which would have reduced the risk
and whether the employer’s conduct which created the risk violated state or federal
work safety regulations. Id. at 757, 513 S.E.2d at 833.
The majority in the present case relies, in part, on allegations supporting the
existence of the two “Arroyo” factors restated in Wiggins: Mr. Stephens’ employers
failed to take additional safety precautions by failing to provide Mr. Stephens
“adequate personal protective/supportive equipment,” and Mr. Stephens’ employers
2
STEPHENS V. ADP TOTALSOURCE
DILLON, J., dissenting
willfully violated government safety regulations. The majority also cites allegations
in the complaint supporting the existence of another Wiggins factor, namely that Mr.
Stephens “was not trained, qualified or experienced” to perform the task assigned to
him by his employers. Id. at 758, 513 S.E.2d at 833 (factor which considers “[w]hether
the defendant-employer offered training”).
However, in 2003, four years after Wiggins and eight years after Arroyo, our
Supreme Court reversed a decision of our Court in which we allowed a plaintiff’s
Woodson claim to proceed, holding that “the six-factor test created by the Court of
Appeals in Wiggins misapprehends the narrowness of the substantial certainty
standard set forth in Woodard.” Whitaker, 357 N.C. at 555-56, 597 S.E.2d at 667.
Our Supreme Court reiterated that Woodson provided a “narrow exception to
the general exclusivity of the [Act]” by allowing an employee or his estate to sue the
employer in tort “only in the most egregious cases of employer misconduct” where said
conduct is intentional and “where such misconduct is substantially certain to lead to
the employee’s serious injury or death.” Id. at 557, 597 S.E.2d at 668 (emphasis
added). The Court reminded that a Woodson claim is not stated where the evidence
shows a “mere possibility” or even a “substantial probability” that the employer’s
intentional misconduct would result in injury or death. Id.
In Whitaker, the evidence showed that a sanitation worker was crushed to
death by a dumpster as the dumpster was suspended as its contents were being
emptied into a garbage truck and the mechanism which latched the dumpster to the
3
STEPHENS V. ADP TOTALSOURCE
DILLON, J., dissenting
truck during the process failed, causing the dumpster to swing around and strike the
employee. Id. at 558, 597 S.E.2d at 669. The Court in Whitaker distinguished these
facts with those shown in Woodson. Specifically, the Court noted that a valid tort
claim existed in Woodson because the evidence there showed the employer
“disregarded all safety measures and intentionally placed his employee into a
hazardous situation in which experts concluded that only one outcome was
substantially certain to follow: an injurious, if not fatal, cave-in of the trench.” Id. at
557-58, 597 S.E.2d at 668.
The evidence in Whitaker showed the latching mechanism holding the
suspended dumpster in place was defective and the employer had committed five
“serious” violations of state labor law, including among others a “failure to train
employees” and a “failure to properly supervise employees[.]” Id. at 554, 597 S.E.2d
at 666. The Court, though, no Woodson claim existed, in part, because “[t]here was
no evidence that [the employer] knew that the latching mechanism on the truck was
substantially certain to fail[.]” Id. at 668, 597 S.E.2d at 668.
The facts as alleged in the complaint in the case before us is much closer to
those in Whitaker than those in Woodson. It is true that it was substantially certain
Mr. Stephens would be seriously injured or die if a bolt keeping the tire mold
suspended failed. But there is no allegation that it was substantially certain that the
bolt would fail as Mr. Stephens was working under the mold, much less that Mr.
Stephens’ employers knew that the bolt was going to fail. There is no allegation that
4
STEPHENS V. ADP TOTALSOURCE
DILLON, J., dissenting
Mr. Stephens’ inexperience contributed to the bolt failing. This is not to say that
there was not a strong possibility or probability that the bolt would fail; however,
there is no allegations to suggest that it was substantially certain that the bolt would
fail. The allegations only show willful negligence by the employers and a tragic
accident.
Pleasant Claim Against Supervisor
I do not believe that the factual allegations in the complaint are sufficient to
establish a Pleasant claim against Mr. Stephens’ supervisor. While the factual
allegations show that Mr. Stephens’ supervisor willfully breached duties he may have
owed to Mr. Stephens, they fall short to show that he had actual or constructive intent
to injure Mr. Stephens much less that he knew or had reason to know that the bolt
which failed causing Mr. Stephens’ death was defective. See Pleasant v. Johnson, 312
N.C. 710, 714-15, 325 S.E.2d 244, 248 (1985) (noting the “distinction between the
willfulness which refers to the breach of duty and the willfulness which refers to the
injury” stating that “[i]n the former only the negligence is willful, while in the latter
the injury is intentional”).
5
Stephens v. ADP TotalSource DE IV
Combined Opinion